Appeal from the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge.

Libel in admiralty by W. R. Grace & Co., a corporation, against the Ford Motor Company of Canada, Limited, and another. From a decree dismissing the libel (278 Fed. 951), the libelant appeals.

The appellant brought a libel in rem and in personam against the appellees and against certain automobiles and parts, for breach of a contract of af-freightment entered into between the appellant and the appellees on February 25, 1916. The Ford Motor Company of Canada will be herein designated the appellee. The contract was for the shipment of 6,200 tons of automobiles and parts from San Francisco to New Zealand and/or Australia. It contained this provision: “Shipment per American Steamship Cacique, June loading; when vessel is closer at hand, will advise you more definitely as to exact loading date.” The negotiations prior to entering into the contract were these:

On February 23, 1916, the Ford Motor Company of Canada telegraphed to the San Francisco office of the Ford Motor Company, a separate corporation, suggesting the consignment of freight for “May and June sailing.” Davis, traffic manager of the Ford Motor Company at San Francisco, after negotiating with the appellant, wired the appellee: “If you can.take 6,200 tons for early June, can close with Grace Company same rate Wellington and Sydney or Wellington and Melbourne.” To which the appellee on February 25 answered: “Accept Grace offer 6,200 tons. Confirm, advising names and dates of sailing.” On the same day the appellant prepared the contract of affreightment which was sued upon. On April 3, 1916, the appellee advised the Ford Motor Company of San Francisco that it had but 4,284 tons for shipment on the steamer Cacique, adding: “However, we expect certain additions from Australia, which will no doubt bring our specifications up to the required amount.” On May 1 the appellee' wired the San Francisco Ford Motor Company that 5,658 tons would be sent forward for shipment under the contract. The shipments, however, totaled only 4,575 tons.

On June 1 the appellee wrote the appellant, advising that 4,075 tons had been forwarded for shipment on the Cacique, and that the appellee had effected an arrangement with the Union Steamship Company for the transfer of 1,500 tons, and that 524 tons had been procured elsewhere, which made up a total of 6,099 tons, adding that it was the appellee’s understanding that the Cacique would leave on June 14, and again that it would sail on June 24, and that the appellee’s plans had been made accordingly. The letter directed attention to the fact that the sailing date as then learned had been postponed until July 10, and on that account the appellee disclaimed liability if it should not be able to supply the full 6,200 tons. The letter called attention to the fact that •the contract “calls for June loading, which in the parlance must necessarily mean June shipping.” The appellant answered on June 6, denying the appel-lee’s contention that the contract called for June shipment, but demanding that the appellee’s shipment must be alongside the Cacique on June 27, ready for loading “as fast as ship can receive.”

On June 14 the appellee advised the appellant that, if the latter should attempt to hold for dead freight the tonnage then actually shipped by the ap-pellee, the latter would decline to load any of the cargo. The appellee then added its contention that the contract of February 25 was not binding upon it, for the reason that the Cacique had. taken out a clearance for July 5, instead of loading and clearing in June. The letter added: “Our shipments of 4,075-ton quantity will be ready and alongside your steamer on June 27, as indicated by you.” On June 22,1916, the appellant advised the appellee’s agent: “Supplementary to our letter of June 5, advising that steamer Cacique will be ready for loading June 27: Please note the delivery of 6,200 tons automobiles and parts, full quantity your engagement under contra’ct date February 25, must commence on that date, June 27, and be completed not later than June 29.”

About that time 1,500 tons of the appellee’s automobiles were delivered on the pier at which the Cacique was to dock. On June 24 the appellee’s agent addressed another letter to the appellant, stating that 4,075 tons is the entire cargo for the Cacique, and that that would be withheld from loading if the appellant intended to hold it for' the full freight of 6,200 tons. On June 26 the appellant telegraphed the appellee, insisting on full performance of the contract in every particular, and declaring its readiness to perform the same, and to accept such quantity of automobiles as might be delivered “and hold you responsible for all damages, including demurrage, which we may ultimately sustain by any breach of said contract.”

On June 27, 1916, the Cacique arrived at San Francisco and docked at Pier 26. There was delay in unloading her inward cargo, and the unloading was not completed until July 8 at 6 p. m., after which the steamer was required to go into dry dock for repairs. She returned to Pier 26 on .inly 12. Tlie 1,500 tons of the appellee’s automobiles still remained on said pier. No cargo was loaded on the Cacique before July 12. In the meantime, on June 27, at 4 o'clock in the afternoon, the appellant brought the present suit, and under its libel in rem seized the 1,500 tons of the appellee’s goods, and by writ of attachment it levied upon 4,000 additional tons of automobiles of the appellee 1hen in the possession of the Southern Pacific Company at San Francisco. On June 28, the day following the commencement of the suit, the appellant telegraphed the appellee: “Please take notice that, in accordance with our Xsrevious advices, the steamer Cacique was ready to load your cargo contracted for on February 25, 1916, on June 27, 1916, at 9 p. m. As you have failed to deliver the cargo alongside steamer as fast as vessel can load, demurrage at the rate of $3,000 per day commences on the day and at the hour last mentioned.”